Wed | Sep 20, 2017

Legal Scoop | That injunction against J. Wray & Nephew - The court DID NOT order the Appleton Estate factory closure

Published:Sunday | May 22, 2016 | 5:43 AMShena Stubbs
Shena Stubbs-Gibson
An aerial view of Appleton Estate.
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Generating quite a bit of buzz and jaw dropping, recently, has been the injunction issued by the Supreme Court, which has resulted in the closure of the J. Wray & Nephew sugar factory, Appleton Estate in St Elizabeth.

The closure of the factory has led to protests by affected farmers in the region and there has been talk that the cessation of operations at the factory may adversely impact Jamaica’s sugar export target for 2016.

With net profit in excess of $1.5 billion after taxes in 2014, J. Wray & Nephew is clearly a successful and very wellestablished business in the Jamaican landscape and the Appleton Estate is a very important cog in its wheel.

It is very unusual to hear that any Jamaican court would be so bold as to order the cessation of any well-established Jamaican business. One would expect the court, except in the face of the most compelling of evidence, to act to the contrary.

It is also expected that the court would be very loath to impose an injunction where the direct impact could be the loss of livelihood for many, loss of employment and material loss of earnings – as alleged in this case.

Upon hearing the chatter, therefore, I was very anxious to obtain my copy of the court’s ruling to form my view of what was put before the court and to get my own understanding of what the court determined.

Not surprisingly, having now read the judgment in question, I am satisfied that the court did not rule that J. Wray & Nephew should close its sugar operations at Appleton Estate. Here, in attempted ‘delegalised language’, is what the court ruled.

BACKGROUND TO LAWSUIT

In December 2015, Algix Jamaica Ltd. (the claimant), operators of a commercial fish and algae farm, which receives water from the Black River, sued J. Wray & Nephew for damages for negligence and nuisance, etc, arising out of an incident on February 27, 2015.

The claimant also sought an injunction. In its pleadings filed before the Supreme Court, the claimant stated that on February 27, the water in its ponds turned dark green, smelled like rotten eggs, dissolved oxygen levels fell, and fish died.

It is important to note that the actual trial – to determine whether J. Wray & Nephew (the defendant) is guilty of the wrongs Algix has accused it of – has not yet been held. It is only the application for the injunction which has been heard.

APPLICATION FOR INJUNCTION

In the Supreme Court, the application for an injunction was heard before Justice David Batts, of, “the police having no right to indiscriminately stop and search motorists,” fame.

In handing down his judgment, Justice Batts was at pains to point out that his job, at the injunction stage, had not been to embark on a trial of the merits of Agjix’s claims against J. Wray & Nephew, but rather to consider the evidence and determine:

1. Whether there was a serious issue to be tried.

2. Whether damages at the end of the day would be an adequate remedy, on the one hand and whether, on the other hand, the defendant would be adequately compensated by the undertaking as to damages.

3. If there is doubt as to the respective adequacy of damages, whether the “balance of convenience” favours the grant of an injunction, or in other words, what order is more likely to produce a just result.

ORDER OF THE COURT

Having gone through the evidence and satisfied himself that:

1. There was a serious issue to be tried.

2. Damages, at the end of the day, would probably not be an adequate remedy for either party.

3. The balance of convenience laid with Algix. That is, according to Justice Batts, “It is only just that the claimant continues to enjoy wholesome water from the Black River without having to bear the real risk, given the recent history of the defendant’s operations, of hazardous effluent from the defendant’s plant entering the Black River [para [33].”

Batts then went on to order that J. Wray & Nephew be restrained, until the trial of the case or further order of the court, from discharging into the Black or Elim rivers, any trade effluent which does not meet the trade effluent standards set out in Table 3 of Schedule III to the Natural Resources Conservations (Wasterwater and Sludge) Regulations 2013.

In short, folks, Batts did not order the closure of the sugar factory, and by extension, the deleterious consequences on cane farmers and the current sugar cane crop of the region. The chairman of J. Wray & Nephew is on record as saying that the ruling of the Court of Appeal (which upheld Batts’ ruling) means that the company will not able to resume its sugar factory operations and the entire sugar crop will be at risk.

Indeed, for J. Wray & Nephew, the ruling may mean what its chairman has stated, however, I think it is important for readers to note that the court did not, in fact, order the closure of the sugar factory operations at Appleton.

Based on the ruling of Batts, J. Wray & Nephew can resume its factory operations tomorrow and resume discharging effluent into the Black River once it is able to discharge the effluent in conformity with certain laws. The ball, it appears, is fully within J. Wray & Nephew’s court.

- Shena Stubbs is an attorney-at-law and legal commentator. Send feedback to: Email: shena.stubbs@gleanerjm